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FAILURE TO PRODUCE DEFENDANT FOR A PROBATION INTERVIEW FOR THE PRESENTENCE REPORT REQUIRED RESENTENCING.

The First Department determined the fact that defendant was not produced for a probation interview, and the resulting absence of a social history from the probation report, required resentencing:

Under all the circumstances, including the fact that this was a conviction after trial rather than a negotiated plea, there should be a new sentencing proceeding. Defendant was not produced for a probation interview, and the presentence report accordingly contains no social history. There is no indication in the record that defendant intentionally avoided the interview. Counsel brought the lack of an interview to the court's attention on the day of sentencing, and requested an adjournment for that purpose. Defendant's opportunity to make a statement at sentencing was not a sufficient substitute for an interview in this case, and his choice not to make such a statement does not warrant a different conclusion. People v Harleston, 2016 NY Slip Op 03428, 1st Dept 5-3-16

CRIMINAL LAW (FAILURE TO PRODUCE DEFENDANT FOR A PROBATION INTERVIEW REQUIRED RESENTENCING)/PRESENTENCE REPORT (FAILURE TO PRODUCE DEFENDANT FOR A PROBATION INTERVIEW REQUIRED RESENTENCING)

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VERTICAL LADDER FIRE ESCAPE, THROUGH WHICH PLAINTIFF FELL AND WAS RENDERED PARAPLEGIC, VIOLATED MULTIPLE DWELLINGS LAW 53.

The First Department, in a full-fledged opinion by Justice Tom, determined the owner of an apartment building was in violation of Multiple Dwelling Law 53, which prohibited vertical ladder fire escapes. Plaintiff fell through the hole in the vertical ladder fire escape when she was visiting her friend’s apartment. Plaintiff was rendered paraplegic and sued the building owner:

… [I]n 1948, the Legislature amended the section to add language to subsection nine of Multiple Dwelling Law § 53 (see Laws of New York, 1948, ch 850). The law was entitled “An Act to amend the multiple dwelling law, in relation to existing fire escapes,” and subsection nine, as amended, expressly states that “[a] wire, chain cable, vertical ladder or rope fire-escape is an unlawful means of egress. Every such fire-escape, if required as a means of egress, shall be removed and replaced by a system of fire-escapes constructed and arranged as provided in this section” (Multiple Dwelling Law § 53[9]).

A plain reading of the clear and unambiguous language of subsection nine leads to the conclusion that all vertical ladders on multiple dwellings, regardless of when the fire escape was constructed, are unlawful and must be removed and replaced by a fire escape that complies with the provisions of Multiple Dwelling Law § 53. Notably, the section includes no exceptions of any kind … . Klupchak v First E. Vil. Assoc., 2016 NY Slip Op 03276, 1st Dept 4-28-16

 

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DEFENDANT SHOULD HAVE BEEN PRESENT WHEN DEFENSE COUNSEL, DURING THE TRIAL, REQUESTED TO BE RELIEVED FROM REPRESENTING DEFENDANT, NEW TRIAL ORDERED.

The First Department, reversing defendant's conviction, determined defendant should have been present when defense counsel explained his concerns about defendant to the judge and asked to be relieved from representing the defendant. The request was denied:

In conducting a colloquy on defense counsel's request to be relieved, the court erred in failing to permit defendant to provide any input, or to even be present. At least by the time that the substance of counsel's ex parte application became clear, defendant should have been included in the proceeding.

…[T]his proceeding was an “ancillary proceeding[] [at which] he . . . may have [had] something valuable to contribute” … , and thus that his exclusion from it was error. While defendant may not have been able to justify counsel's removal, we cannot say that the “new matter” brought to light at the ex parte proceeding — where counsel revealed the content of a privileged communication with the court, and expressed the belief that defendant's criticisms of his performance were insincere attempts to sow error in the record — implicated “no potential for meaningful input from [] defendant” … on the subject of whether continued representation by counsel was appropriate.

The proceeding also implicated the court's obligation to make a “minimal inquiry” regarding whether the new facts justified substitution of counsel… . People v Moya, 2016 NY Slip Op 03241, 1st Dept 4-28-16


PEDESTRIAN IN A CROSSWALK STRUCK FROM BEHIND IS NOT COMPARATIVELY NEGLIGENT AS A MATTER OF LAW.

The First Department, in a full-fledged opinion by Justice Saxe, determined plaintiff pedestrian was not comparatively negligent as a matter of law, and therefore plaintiff's motion for summary judgment should have been granted. Plaintiff was crossing a street in the crosswalk, with the light, when he was struck from behind:

… [W]e hold that as a matter of law, plaintiff, who was struck by a bus that approached from behind and to the right, and which turned left into the crosswalk where it struck plaintiff, may not be held comparatively negligent based on a theory that he could have seen and avoided the bus through the exercise of ordinary care. Quintavalle v Perez, 2016 NY Slip Op 03126, 1st Dept 4-26-16


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OUT-OF-POSSESSION LANDLORD CAN BE LIABLE UNDER LABOR LAW 240 AND 241.

The First Department noted that an out-of-possession landlord can be held liable for Labor Law 240 and 241 claims:

… [T]he court improperly dismissed the Labor Law §§ 240 and 241 claims on the ground that the City was an out-of-possession landlord, since the statutes impose liability on property owners without regard to the owner's degree of supervision or control over the premises … . Siguencia v City of New York, 2016 NY Slip Op 03108,  1st Dept 4-26-16


REFORMATION OF CONTRACT TO CORRECT THE NAMING OF THE WRONG PARTY TO BE INDEMNIFIED, A MUTUAL MISTAKE, SHOULD HAVE BEEN ALLOWED.

The First Department, reversing Supreme Court, determined an indemnification agreement could be reformed on the grounds of mutual mistake. The wrong party was named as the “owner” and, therefore, the true owner was not named in the hold harmless clause of the indemnification agreement:

“A claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake” … . To succeed, the party asserting mutual mistake must establish by “clear, positive and convincing evidence” that the agreement does not accurately express the parties' intentions or previous oral agreement … .

Parol evidence may be used … , and reformation is an appropriate remedy where the wrong party was named in the contract … . On the record before us, plaintiffs clearly and convincingly established that K & K intended to indemnify the true owner, 313 West, and that, as a result of mutual mistake, the agreement misidentified Solil, the managing agent, rather than 313 West itself, as the “Owner” of the property where the work was to be performed. 313-315 W. 125th St. L.L.C. v Arch Specialty Ins. Co., 2016 NY Slip Op 03105, 1st Dept 4-26-16


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ARBITRABLE CLAIMS WHICH ARE INEXTRICABLY TIED TO CLAIMS ALREADY IN COURT SHOULD BE LITIGATED IN COURT.

The First Department, over a two-justice dissent, reversing Supreme Court, determined the contract disputes should be litigated, despite arbitration clauses in some of the related agreements. One of the agreements, the Quennington Agreement, included a forum selection clause which designated the courts as the sole forum for dispute resolution. The First Department held that the forum selection clause demonstrated the intent of the parties, and the fact the Quennington Agreement had been terminated by a subsequent agreement did not contradict that intent. The issues which were arguably subject to arbitration under the other agreements were deemed to be intertwined with the issues which were already in court pursuant to the Quennington Agreement:

Although this Court does not appear to have directly addressed the issue, the other Departments have held that, where some of a group of claims are covered by an arbitration agreement, it is appropriate to litigate the entire group in court if all of the claims were already asserted in court and the claims not subject to arbitration would be “inextricably bound together” with the claims that are subject to arbitration … .

Here, one could argue that all of the claims in the complaint arose under the Quennington Agreement … . … [E]ven if some of the claims could be said to arise out of the Quennington Agreement, and others out of [another agreement], they are cut from the same cloth, and are, unquestionably, inextricably bound together and therefore should be litigated in court. Garthon Bus. Inc. v Stein, 2016 NY Slip Op 03102, 1st Dept 4-26-16


LADDER WAS NOT DEFECTIVE, FALL NOT COVERED BY LABOR LAW 240.

The First Department determined plaintiff's fall from a ladder did not support a Labor Law 240 cause of action. Plaintiff's pant leg caught on an unmarked rebar as he descended from the third rung. The accident was not caused by a defective ladder and was not attributable to an extraordinary elevation-related risk:

… [D]ismissal of the Labor Law § 240 claim was proper, as there is no dispute that the ladder was free from defects, and the record shows that plaintiff's fall was not attributable to the kind of extraordinary elevation-related risk that the statute was designed to prevent. Rather, plaintiff's injuries “were the result of the usual and ordinary dangers at a construction site” … . Almodovar v Port Auth. of N.Y. & N.J., 2016 NY Slip Op 03075, 1st Dept 4-21-16


ORDINANCE OR LAW ENDORSEMENT DID NOT REQUIRE INSURER TO PAY FOR REMEDIATION OF CODE VIOLATIONS NOT RELATED TO THE COVERED DAMAGE.

The First Department, in a full-fledged opinion by Justice Saxe, determined a “Blanket Ordinance or Law Coverage Endorsement” did not cover remediation of below-code construction which was not related to the covered damage. Below-code structural concrete was discovered when covered water-related damage was being repaired. Because the below-code concrete was unrelated to the water damage, the “Law Coverage Endorsement” did not obligate the insurer to pay for remedtion of the concrete-work:

Here … the latent problem that was uncovered by inspection necessitated by the covered damage was not a problem related to the covered damage; rather, the inspection discovered a latent, unrelated problem with the building's infrastructure. The condition of the concrete slabs in plaintiff's building, which had to be repaired to bring the building into compliance with the Building Code, bore no relationship to the covered loss — the water damage … .

… The Ordinance or Law endorsement cannot be triggered simply by the discovery, in the course of an inspection necessitated by a covered event, of structural problems that amount to code violations. That is so whether the discovered condition could have been discerned earlier … or where, as here, it could not have been discovered absent the covered damage. St. George Tower v Insurance Co. of Greater N.Y., 2016 NY Slip Op 03100, 1st Dept 4-21-16


FAILURE TO INFORM JURY OF EFFECT OF ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFCATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The First Department reversed defendant's conviction in the interest of justice because the trial judge did not make clear that acquittal of the top count (second degree murder) based on the justification defense required acquittal of the lesser homicide charges:

… [R]eversal in the interest of justice is warranted by the court's failure to convey to the jury, either directly or indirectly, in any part of its charge, that an acquittal on the top count of murder in the second degree based on a finding of justification would preclude consideration of the two lesser homicide charges. While the jury may have acquitted on the top charge without relying on defendant's justification defense, it is nevertheless “impossible to discern whether acquittal of the top count . . . was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts”… . People v Rowley, 2016 NY Slip Op 03084, 1st Dept 4-21-16


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